Judges are free to consider almost anything that justifies reducing a criminal defendant’s sentence.

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Virtually every person facing criminal punishment wants to
know the factors that might cause a judge to increase the sentence. These are
called aggravating
circumstances. But for every yin there’s a yang: Judges must also consider
mitigating circumstances when sentencing defendants. These are facts or situations
that don’t relate to the question of the defendant’s guilt, but that support leniency.

Anything That’s Relevant

When determining a sentence, a judge or jury (usually a
judge) can consider all information that reasonably relates to the defendant’s
culpability. Information of this type falls into two categories: information about
the offense and information about the offender.

For guidance as to the factors they should consider, judges
can look to statutes that list aggravating and mitigating circumstances. But the mitigating factors that a statute lists generally aren’t exclusive—judges
can consider other criteria that relate to the defendant and the crime.

Common Mitigating Circumstances

Here are some common mitigating circumstances. The list is
far from exclusive.

Minor role. The
defendant played a relatively minor role in the crime. For example, suppose Pete
received $20 for knowingly driving a codefendant to a location where the latter
made a drug deal. At sentencing for his conviction for transporting
methamphetamine, Pete has a good argument that his small role in the criminal
activity is a mitigating circumstance.

Victim culpability. The
victim willingly participated in the crime or initiated the events leading to
it. If Domingo started a fight by attacking Walter and Walter responded with
more force than was necessary to defend himself, this factor would come into
play at Walt’s assault-and-battery sentencing.

Unusual circumstance.
The defendant committed the crime because of temporary emotional difficulty
or significant provocation. This circumstance applies when a defendant acts out
while under extreme stress. For example, suppose that Jesse, in anguish over
the recent death of his girlfriend, stole some beer from a liquor store so he
could get drunk.

No harm. The
defendant didn’t hurt anyone and committed the crime in a manner unlikely to cause harm. The no-harm circumstance would be relevant if Hank carjacked a driver
by sternly ordering her out of her car, but carefully and gently helped her out
of it.

Lack of record. The
defendant doesn’t have a criminal record, or only has a relatively minor
record.

Relative necessity. The
defendant acted out of a desire to provide life necessities. This circumstance would
be relevant for someone who stole a rotisserie chicken from the grocery store
so that he could feed his starving family.

Remorse. The
defendant accepted responsibility and showed remorse. A defendant who confesses
upon arrest and is contrite in court has this factor in his favor.

Difficult personal
history. The defendant’s unique upbringing or family circumstances led to
her criminal conduct. For example, a lawyer might try to persuade a sentencing
judge that the client’s violent acts are attributable to abuse she suffered as
a child.

Addiction. Drug
or alcohol addiction contributed to—but wasn’t just an incentive or excuse to commit—the
crime. Addiction would be a mitigating factor for Bubbles’s theft conviction if
he had showed a concerted effort at rehabilitation, but relapsed into drug use
and stole some copper wire while high.

Not Everything Under the Sun

Not everything can be a mitigating circumstance. For example, some
courts have ignored as a mitigating factor the defendant’s waiver of the right
to a jury trial. One court rejected harsh prison conditions the defendant faced
as a mitigator.

But as long as it bears some
relation to the crime, defense lawyers should present every fact in the
defendant’s favor at sentencing. Judges have wide discretion in what they can
consider, and an argument that doesn’t appeal to one judge might resonate with
another.